The Right to Procreate: When Rights Claims Have Gone Wrong

Laura Shauuer

McGill Law Journal
McGill Law Journal

Abstract
Debates regarding the development of new reproductive technologies (NRTs), funding for infertility treatments, and non-medical criteria for access to infertility treatments frequently invoke “rights to reproduce” or “procreative rights”. The claim of this right – literally the right to have children – is not the same thing as many other “reproductive rights” that are invoked in contraception, abortion, and pregnancy management discussions.

The author argues that the claim of a right to bear or beget children, which may in turn support research into NRTs and then funding and access claims, is not justified. Framing procreative decisions in terms of rights claims is a problematic ethical project, which in turn creates difficulties for the establishment of legal procreative rights. There are two critical problems: first, the distinction between positive (entitlement) and negative (liberty) rights claims leaves those requiring reproductive assistance in need of a different justification for their claims than those who need no help; second, a procreative right is generally claimed to be limited by the rights or interests of the future children, but a right of non-conception is an intemally contradictory concept.

The author then discusses variations of procreative rights claims, including claims of rights to enter reproductive contracts or to seek assistance, and other conceptual foundations for reproductive decisions. Thus, while reproductive rights are often helpful in protecting individuals and families from undue governmental intrusion, rights are shown to be a problematic, inadequate, and inappropriate framework to describe both the legal and moral status of claims for assisted procreation.


Shauuer L. The Right to Procreate: When Rights Claims Have Gone Wrong. McGill Law J. 1995 Aug;40(823-874.

(Correspondence) Abortion: a violent procedure?

Brian A Shamess

Canadian Medical Association Journal, CMAJ
Canadian Medical Association Journal

Extract
I too was dismayed and deeply concerned about the attack against Dr. Romalis. None the less, I must comment on Marshall and colleagues’ statement that “we abhor the use of violence in ethical debates.” These students must realize that therapeutic abortion is the only legalized medical procedure in which another human life is taken. . . Certainly the medical community should oppose violence against physicians practising in this area. Even if this perpetrator, or convicted US murderer Paul Hill, was exercising a difficult personal choice in targeting a physician who performs abortion, a violent act against a physician remains as abhorrent as abortion itself.


Shamess BA. (Correspondence) Abortion: a violent procedure? Can Med Assoc J. 1995 May 01;152(9):1376.

(Editorial) Abortion- a debate

J Smith

South African Medical Journal
South African Medical Journal

Extract
The wave of abortion-on-demand legislation sweeping the world has reached our shores. The first blows to the concept of the sanctity of human life are being dealt at a time when health care in South Africa is undergoing tremendous upheaval. This concept may be irreparably damaged if the present Abortion and Sterilisation Act of 1975 is changed. . . Health professionals should be guided in their decisions and proposals by health values and by scientific evidence. Unfortunately these are not the only prerequisites, since moral and religious considerations are always subconscious realities. Enormous moral and ethical pressures already confront those making decisions about the provision of medical and health care in developing countries. . . The ‘unwanted’ child . . .is therefore victimised, not because of his or her own shortcomings but because society attempts to solve its socio-economic and broader health problems through the sacrifice of its children. . . To avoid abortions, fertility regulation (family planning)should be aggressively propagated in South Africa with specific emphasis on female education and counselling regarding contraceptive information, services and supplies and sterilisation. Contraception saves the lives of thousands of women around the world owing to avoidance of unwanted pregnancies.


Smith J. (Editorial) Abortion- a debate. S Afr Med J. 1995;85(3):137-139.

(Correspondence) Understanding fanatics and followers (The author responds)

Douglas Waugh

Canadian Medical Association Journal, CMAJ
Canadian Medical Association Journal

Extract
Dr. Hoaken brings his formidable analytic talents to bear on the problem of assaults on abortionists. Certainly the concept of “justifiable homicide” would or should be abhorrent to us all – I say this as a former soldier in World War II, in which a lot of “justifiable homicide” took place. . . .If I read his letter correctly, his plea is for a greater degree of humane tolerance than seems to prevail now. I could not agree more strongly. I believe that Drs. Fireman and Lemoine would endorse this view. Their comments on the genocidal behaviour in Nazi Germany during World War II are well taken; in an earlier draft of my manuscript I did make this comparison. . . . I believe Fireman, Lemoine and I have similar, if not identical, views on this.


Waugh D. (Correspondence) Understanding fanatics and followers (The author responds). Can Med Assoc J. 1995 Mar 15;152(6):808.

The Pro-Life Maternal-Fetal Medicine Physician: A Problem of Integrity

Jeffrey Blustein, Alan R Fleischman

The Hastings Center Report
The Hastings Center Report

Abstract
If the practice of maternal-fetal medicine sometimes results in abortion, can a physician strongly opposed to abortion maintain his own integrity and still practice in this field? . . . In the final analysis, we are not persuaded that a physician with strong pro-life convictions can be a participant in the practice of maternal-fetal medicine without betraying her or his integrity. We respect the attempts of thoughtful pro-life maternal-fetal physicians to reconcile their deeply held moral or religious beliefs with their profession’s standards of care, but it may be best for all concerned if individuals with strong objections to abortion avoided the practice of modern perinatal medicine.


Blustein J, Fleischman AR. The Pro-Life Maternal-Fetal Medicine Physician: A Problem of Integrity. Hastings Cent Rep. 1995;25(1):22-26.

Who is worse? Fanatics or their followers?

Douglas Waugh

Canadian Medical Association Journal, CMAJ
Canadian Medical Association Journal

Extract
When Dr. Garson Romalis was shot in Vancouver in November – police have suggested there is a link between the shooting and his performance of abortions – I realized there are certain aspects of human behaviour that I will never figure out. What could give rise to such hatred? What mysterious willingness causes people to let themselves be led into destructive and pointless violence? . . . Although the motives in these cases are undoubtedly complex, it seems clear that each of the fanatic snipers intended to kill, maim or scare the daylights out of these physicians and others like them. And although society as a whole reacted to the events with revulsion, there were without doubt people who said of each case: “Right on! That’s the proper treatment for those baby killers.” . . . Even if we must accept the occasional appearance of a misguided or mad killer among us, must we also accept the frightening cluster of approving supporters who almost inevitably turn up to endorse the madman and his ideas?


Waugh D. Who is worse? Fanatics or their followers?. Can Med Assoc J. 1995 Jan 01;152(1):90.

Freedom of conscience, professional responsibility, and access to abortion

Rebecca S. Dresser

The Journal of Law, Medicine & Ethics
The Journal of Law, Medicine & Ethics

Extract
Access to abortion is becoming increasingly restricted for many women in the United States.  Besides the longstanding financial barriers facing low-income women in most states, a newer source of scar­ city has emerged. The relatively small  number of physicians willing to perform the procedure is compromising the ability of women in  certain parts of the country to obtain an abortion. Do physicians have a duty to respond to this situation? Do they have a professional responsibility  to ensure that abortions are reasonably available to the women who want to terminate their  pregnancies? Or, is abortion so morally and socially controversial as to remove any professional  obligation to provide reasonable access?


Dresser RS. Freedom of conscience, professional responsibility, and access to abortion. J Law Med Ethics 1994 Fall;22(3):280-5.

Abortion: the limits of moral repugnance

Leah L Curtin

Nursing Management
Nursing Management

Abstract
A 28-year-old married woman, gravida 3 para 2002, was transferred to a tertiary care hospital at 27 2/7 weeks gestation for verification of gross fetal anomalies. Ultra-sonography studies showed the child she carried had a dramatic gastroschises, an enlarged heart, and small limb buds for arms. The patient was informed of her fetus’ condition and, after she discussed the situation with her husband, both parents asked that the pregnancy be terminated.

Using prostaglandin, the physician induced labor prematurely in a labor and delivery room suite. Both parents held the child until shortly before its death.

A voluntary abortion this late in pregnancy for nonlethal birth defects caused considerable concern and even distress among the nursing staff on this unit. As a matter of conscience, almost half of the nursing staff refused to care for any patients having elective abortions, and this case raised even more moral questions than usual. Moreover, this couple—and even their family members—received threatening phone calls and letters while the woman was still in the hospital, and the couple reported receiving even more after she returned home.


Curtin LL. Abortion: the limits of moral repugnance. Nurs Manag. 1994 Oct;25(10):22-25.

(Correspondence) Methotrexate and misoprostol used in abortions (Author responds)

Ellen R Wiebe

Canadian Medical Association Journal, CMAJ
Canadian Medical Association Journal

Extract
Of course methotrexate is contraindicated for a wanted pregnancy: it causes abortion in approximately 95% of pregnancies of less than 7 weeks’ gestation. This is why we are using it as an abortifacient. . . . if abortion failed in a women given methotrexate and she refused to undergo surgical abortion, there would be a risk to the fetus. From the experience with RU 486 in Europe we know that women rarely change their minds about abortion in such cases.


Wiebe ER. (Correspondence) Methotrexate and misoprostol used in abortions. Can Med Assoc J. 1994;151(5):518.

(Correspondence) Methotrexate and misoprostol used in abortions

Anthony T Kerigan

Canadian Medical Association Journal, CMAJ
Canadian Medical Association Journal

Extract
. . . methotrexate is contraindicated during pregnancy. If Wiebe and the University of British Columbia Ethics Committee have information on the safety of this drug during pregnancy perhaps they could share it with readers.


Kerigan AT. (Correspondence) Methotrexate and misoprostol used in abortions. Can Med Assoc J. 1994 Sep 01;151(5):518.